Intellectual Property

Ghost In The Machine: Why AI Faces An Uphill Battle For Copyright Authorship

If AI actually creates a work, is it copyrightable, and if so, who is the author?

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If you haven’t heard about artificial intelligence (“AI”) by now, you may be surprised to know that it has heard about you.  Whether you like it or not, AI is touching upon your everyday life each and every day.  From Google’s use of AI in internet searches to the electronic assistants you may have in your house like Amazon’s Alexa, Google Home, and others to name a few, AI is here.  It seems to be extending its reach in new and interesting ways almost weekly — in fact, AI has even created photorealistic faces that don’t actually exist.  That’s right — nVidia Corporation has created a neural network that generates artificial photos that look uncannily like real people, but don’t actually represent real people.  Scary stuff.  Which begs the question:  if AI actually creates a work, is it copyrightable, and if so, who is the author?

I know what you might be thinking — why does this matter?  Well, it actually matters a lot. As evidenced by the incredible (and eerie) nVidia accomplishment noted above, AI is essentially “spreading its wings” at this stage of its development and implementation.  We have only scratched the surface of what AI can do, but AI seems to be able to learn enough to “create” content on its own.  You may chuckle and think this may be a bit futuristic, but don’t laugh — the OpenAI project (a non-profit backed by Elon Musk, who is no stranger to thinking ahead of the curve) has actually developed an AI content system that is so good at doing so that OpenAI won’t release it publicly due to a fear of it being misused.  Talk about “fake” news all you want, but AI can take it to an entirely new (and frightening level).  The point is that AI can (and does) develop content, and for the organizations that employ such technology (and corresponding content) and seek to make money from it, the copyrightability of such works is a very big concern.

Unfortunately for AI proponents, copyright law at present does not provide the protections they seek.  The problem stems from the core principal of copyright law.  Under Section 102 of the Copyright Act, “[c]opyright protection subsists … in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”  For a work to be copyrightable, it must be an original work that is fixed within a tangible medium. Can a work be “original” if created by a non-human?  Good question, and one which has been answered by the courts, at least in the context of animals.

Back in 2011, nature photographer David Slater was on the island of Sulawesi in Indonesia when he gave his camera to a macaque monkey named Naruto — an action that ended up in Naruto taking a “selfie” that went viral.  Although many outlets claimed that the photographic work was in the public domain, none other than the organization People for the Ethical Treatment of Animals (PETA) filed a lawsuit as next friend of Naruto in the Northern District of California claiming, of course, that the monkey owned the photo (not Mr. Slater).  Ultimately, that case was dismissed, and the dismissal affirmed by the Ninth Circuit on the basis that non-humans do not have standing to sue under copyright law.  In fact, in 2014, the Copyright Office took the position in its Compendium of Copyright Office Practices, Third Edition that it “will not register works produced by nature, animals, or plants.”  But what of AI?

Interestingly, on March 15 of this year, the Copyright Office released an updated draft of its Compendium that clarified the matter.  In Section 313.2 of the Compendium, the Copyright Office has made it clear that “[t]o qualify as a work of ‘authorship’ a work must be created by a human being.”  If not created by a human being, they are not copyrightable.  As if to punctuate the position regarding computer-generated works, the Copyright Office states the following:

Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author. The crucial question is “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.” (citing U.S. Copyright Office, Report to the Librarian of Congress by the Register of Copyrights 5 (1966)) (emphasis added).

Simply put, where the traditional elements of authorship are “conceived and executed” by a machine and not through human intervention, there can be no copyright.

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Although the tide appears to be firmly against the copyrightability of AI works (or any other computer-generated work for that matter), I remain skeptical that this position will remain viable in the long term.  From my perspective, there may come a time where the AI-generated work rises to the level of “original” expression consistent with the intent of the Copyright Act (even though such expression would likely require a level of AI self-awareness that is arguably a long way off).  Whether we like it or not, more and more content will be computer-generated and AI appears to be leading that charge.  All of that content (and the dollars it generates) will not be quietly relegated to the public domain, and I wouldn’t be surprised that a future update to the Copyright Act attempts to parse authorship criteria in a more AI-friendly way.  Until the “ghost in the machine” represents something more than programming running counter to the will of its human programmer, I guess we’ll have to leave the heavy lifting of copyrightable content to human beings.

Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

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